WASHINGTON DC —
In compliance with new constitutional provisions, Zimbabwe no longer has a female prisoner on death row.
There were only two women on death row, Rosemary Margaret Khumalo and Shylet Sibanda. Khumalo died of natural causes at Chikurubi Maximum Security Prison, leaving only Sibanda on death row.
But the state has now removed the 29 year-old Sibanda from death row. Zimbabwe’s new Constitution spares all women as well as men under 21 at a time a crime is committed and senior citizens aged more than 70 from the death penalty. It also prohibits the imposition of the death penalty as a mandatory punishment.
Sibanda and her accomplice, husband Zireni Mutengengerere, and a family friend Darlington Nyaungwe, were all sentenced to death by hanging by Justice Felistus Chatukuta for murdering Daniel Sithole in 2010 and stealing the deceased’s vehicle. Justice Chatukuta found no extenuating circumstances in the murder of Sithole.
Zimbabwe Women Lawyers Association representing the late Khumalo and Sibanda, on a pro-bono basis, approached the Constitutional Court in Harare seeking an order directing the minister of justice and the prosecutor-general to take steps to ensure that all death sentences imposed on women be set aside and substituted with appropriate jail terms.
But vice president and minister responsible for justice Emmerson Mnangagwa had opposed the application arguing that it had been wrongly placed before the Constitutional Court. Mnangagwa said, “It is clear that Section 48 (2) (e) of the Constitution of Zimbabwe confers a right on all persons, the right to seek a pardon or commutation of their death penalty from the President of the Republic of Zimbabwe,”
He added that “such a right extends to all women in terms of Section 48 (2) (d), and includes women in the situation of applicants upon whom the death penalty was imposed prior to the promulgation of the Constitution, but in respect of whom the sentence has not yet been carried out.”
Sibanda’s lawyer, Advocate Fadzi Mahere, says she withdrew the matter from the Constitutional Court after it emerged that the state had removed her client from the death row.
Zimbabwe's constitution allows the death penalty, but no one has been executed since 2004, in part because there was no hangman. Mnangagwa, who was once sentenced to death by the colonial government of Ian Douglas Smith, has vowed not to sign any execution warrants.
Director of the International Commission of Jurists, Arnold Tsunga, welcomed the removal of Sibanda from death row but said there are still too many people on death row in Zimbabwe.
Tsunga also raised concern with the law which seems to discriminate against men.
Senior researcher Dewa Mavhinga of the Human Rights Watch concurs, noting that the death sentence must be abolished for all Zimbabweans.
The government has now introduced the General Laws Amendment Bill to align the constitution as University of Zimbabwe constitutional law expert and president of the National Constitutional Assembly party, Professor Lovemore Madhuku explains.
“Yes there is a bill the General Laws Amendment Bill which seeks to align a number of laws with the constitution. One of the provisions in that bill relates to the question of the death penalty. In the constitution the provision is for … you impose the death penalty where there are aggravating circumstances. So, the bill is now defining what aggravating circumstances are which will attract the death penalty …”
Zimbabwean defense lawyers have argued that keeping convicted persons on death row, for years before execution, amounts to cruel and unusual punishment, which the constitution says is illegal. The debate over the death penalty has been complicated in recent years by such concerns as the fairness of the criminal justice system, the role of doctors in carrying out executions, and the possibility of reform and rehabilitation among death row inmates.
Mavhinga said in light of these developments executing people is uncalled for.
Advocates for the abolishment of the death penalty in Africa have also been emboldened by developments in America where authorities in some states have botched executions. A death row inmate in Oklahoma, Clayton Lockett, 38, suffered a prolonged execution after the lethal injection he was given, failed to work. He eventually died of a heart attack.
The lethal injection was developed in the 1970’s as an alternative to electrocution. In all but one of the 37 American states that currently have death penalty statutes, only Nebraska still uses the electric chair.
Human rights groups have also raised serious concern with the flaws in the justice delivery system that has seen innocent people being sentenced to death.
David Keaton, the first man exonerated from death row in the modern era of the death penalty (1973-present), died on July 3 at the age of 63. Keaton was convicted and sentenced to death in Florida in 1971 for the murder of an off-duty police officer. His conviction was based on a coerced confession and erroneous eyewitness testimony.
In 1973, the actual perpetrator was discovered because of new evidence, and Keaton was exonerated. In 2003, Keaton became a founding member of Witness To Innocence, an organization of death row exonerees who share their stories to educate the public about the death penalty.
Kathy Spillman, director of programs and outreach at Witness To Innocence, said of Keaton, "His life was very difficult. He was sentenced to death as a teenager.”
There have been 154 people exonerated from death row in the United States.
Executive director of Witness To Innocence, Magdaleno Leno Rose-Avila, says there are still many cases where people are wrongly convicted.
Advocates of the death penalty argue that removing the death penalty might result in a spike in murders. But Rose-Avila says there is no evidence to support this.
Tsunga concurs. “The deterrence argument in capital punishment has long been disapproved because studies in many countries, for example in U.S where you have some states still imposing the death penalty empirical studies have tended to show that in countries where death sentences are imposed the level of crime does not diminish or reduce.”
Zimbabwe National Traditional Healers Association secretary for education, Sekuru Peter Sibanda, says in Shona culture people were not sentenced to death for murder but they were allowed to compensate the family of the deceased.
An article in The Economist highlighted the continuing long-term international trends away from the death penalty. Since December, three countries - Fiji, Madagascar, and Suriname - have abolished the death penalty, increasing the number of abolitionist countries to above 100.
In December, 117 countries voted to support a United Nations resolution for an international moratorium on executions. The article notes a few outlier countries, including the United States and China, in which executions persist and that there has been a rise in executions in portions of the Muslim world.
In the U.S., however, death sentences were down and numerous metrics point to the decline of capital punishment. "Of the 31 states that still have the death penalty, half have executed no one since 2010...In 1994 80% of Americans said they endorsed the death penalty in principle. The Pew Research Centre reckons that fewer than 60% do so today - and notes that young Americans are less keen than their elders."
Even in China, which carries out more executions than any other nation, the use of the death penalty is on the decline. The number is a state secret but the Dui Hua Foundation, an American NGO, reckons there were about 2,400 [executions] in 2013, the last year it has been able to track. Campaigns against corruption and terrorism mean the fall may not have continued last year. But the long-term trend is steeply down. In 1983, 24,000 people are thought to have been executed.
Amnesty International though noted that in 2014, there were an alarming number of countries that used the death penalty to tackle real or perceived threats to state security linked to terrorism.
The number of death sentences recorded in 2014 jumped by almost 500 compared to 2013, mainly because of sharp spikes in Egypt and Nigeria, including mass sentencing in both countries in the context of internal conflict and political stability. China in 20014 carried out more executions than the rest of the world put together. The other countries making up the world’s top five executioners in 2014 were Iran, Saudi Arabia, Iraq and USA.